Law School For You: Understanding divorce law

WASHINGTON, April 22, 2017 –“I do” can be both the shortest and the longest sentence in the English language.

Living happily ever after is absolutely possible and real, and examples abound. The flip side, however, is unfortunate. As a result, sometimes the togetherness between once-smitten lovers ends up with each partner moving in different directions.

Besides a possible visit or two to traffic court, a divorce might be someone’s first encounter with the legal system. The prospect of dealing with lawyers, courts, and legal terminology can be intimidating and can compound the emotional stress that accompanies the breakdown of a marriage.

One of the best ways to prepare for what’s to come is to understand the process. Here then are some explanations:

A somewhat common course of action for couples having marital problems that are reaching a peak is to physically separate from one another, with one of the two literally moving out of the marital residence, or at least out of the marital bedroom. A physical separation does not mean the couple is divorced, however, or even contemplating divorce. Being physically separated does not mean it is then “legal” to have another relationship.

A legal separation is an official order from a court that directs certain things, such as how to divide marital property, whether to award spousal support, child custody, child support, and other matters. Some states require the couple agree to all terms, and others provide that even if there is disagreement, a judge can impose orders.

While laws differ in every state, there are numerous common threads that accompany this unhappy process.

Divorce can be referred to as Dissolution of Marriage. A court order is required to end the legal relationship. To obtain a divorce, couples must meet minimum state requirements. The most common of these in most states is a requirement of residency in the state for a specific length of time, typically six months.

Some states have rules that prescribe residency only for weeks while others require being a resident for a year before a divorce action can proceed. A few states have no time length residency requirement. These have become destinations for what are known as “quickie” divorces.

Beyond residence time requirements, some states require couples be separated for a certain minimum time. The hope of is that with enough time, the couple may have a change of heart and reconcile.

Getting divorced must occur in the state where the couple lives. Where they married is not typically a proper jurisdiction.

Divorce laws allow for finality by agreement, or by fire. The fire is ultimately the courtroom trial where a judge decides the disputed issues.

Ending a marriage does not mean there has to be a fight. Sometimes the relationship simply does not work. Couples can choose to work amicably toward their final separation.

An uncontested divorce means the couple has agreed to all of the issues between them. These may include issues of dividing property, spousal support, and issues with children, including support and custody. A divorce agreement that is ultimately entered into is a legally binding agreement. When all of the terms can be agreed to, the transition is obviously easier. The trick is to assure all concerns are addressed.

The biggest issues that arise when couples separate or divorce are typically those associated with money and children.

Potentially, property matters may get complicated, and even more so the longer the couple was together. Specifically, that is because, presumably, there simply is more property involved.

State and federal laws, and interpretations of those laws, can make decisions about who gets what very difficult.

Matters regarding children certainly might strike the emotional chord the hardest. Custody battles happen for a myriad of reasons, but two that seem common are first, the concern by one spouse about not playing a meaningful role in the children’s lives if the other spouse gets custody; and, unfortunately, fighting custody rights as a way to “get back” at the other spouse. Even so, every expert, psychologist, therapist, judge, mediator and even the butcher agree that spouses should work toward the best interests of the children.

All states have guidelines for determining the minimum amount of child support that should be paid following a divorce.

Resolving all issues means a faster and less expensive divorce process. Clearly, agreement is preferred to having to litigate to resolve lingering issues. It is possibly very dangerous, however, for a divorcing spouse to agree to everything “just to get out of this.” Before simply signing off on any divorce agreement, real in-depth communication, identification of all possible future issues, and real disclosure of all financial matters is highly desirable.

The rush to get out of and conclude a divorce can adversely affect one spouse in financial ways never realized in the heat of the battle or the strong desire to simply move on. Waiving, or agreeing to “some seemingly fair” amount of spousal support in particular can be financially disastrous. A thorough, realistic assessment of what is needed and what can be paid is very important for all involved.

Next, hidden debts that are legally the obligation of both spouses but only known to one can later pop up, chopping off the proverbial head of the unknowing spouse. In a “contested” divorce hidden “secrets” are more likely to be disclosed.

Agreeing to “work it out” regarding children is unfortunately too often the groundwork for serious battles later on over things like visitation rights, holidays, birthdays and vacation time decisions.

When issues cannot be resolved, many states push spouses into mediation, and some require that process.

Mediation is one of the most frequently used methods of negotiating the affairs that accompany divorce. A mediator is a facilitator, typically an experienced, and certainly a neutral third party, who works with the couple to resolve issues.

The knowledge and experience of a mediator can help move a reluctant spouse toward resolution, sometimes accomplished by simply sharing that the position being held will likely not be successful if the matter were to go before a judge.

A contested divorce remains the most expensive, the most time sucking, and certainly the most emotionally draining path to resolution of issues.

Lawyers are needed by each side in a divorce. Yet they often get a bad rap, because they are advocates for their clients. Their goal is to provide the best resolution for their client. The result can be nasty because there can be tough questions, the discovery of dirty secrets, exposing lies, exposing hidden assets, and more. This is the reality, unfortunately, of some divorce proceedings.

Highly contested divorces can involve hiring expert witnesses. Child custody cases, for example, are often plagued with complications and conflicts on both sides. Professionals can assist a judge in deciding custody matters by providing unbiased information about each spouse, living conditions, children’s relationships with each spouse, and what might be best for the children’s mental health.

Know that, despite what you may think, children are affected by the breakup. A good and loving parent will always act in the best interests of his or her children. Professionals can help guide the way to provide a nurturing environment that disrupts the children’s lives as little as possible.

Matters involving money can also be highly contested. Experts such as forensic accountants can address considerations of income, assets, debts and expenses. Their expertise in accounting, auditing and investigation makes their services valuable, helping to produce fair determinations in all measure of financial matters. These would include division of assets and responsibility for debt, spousal support, and child support.

One last thought involves going back to the beginning of the process. Getting professional guidance, specifically from mental health professionals—marriage counselors for example—is often very helpful when sorting through numerous complex issues that attach to both the couple and to each individual. Sometimes these professionals can help restore the relationship and eliminate the need for divorce.

Each spouse must also know that marriages fail sometimes due to problems afflicting only one of the spouses. If those problems can be addressed, the marriage might be able to continue.

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.

Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.

Attorney Paul Samakow brings his legal expertise and analysis from the trenches of the courtroom to Communities Digital News. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980 practicing in the DC metro area. Paul can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email @ [email protected], or through his website @ http://www.samakowlaw.com/. He is also available to speak to your group on numerous legal topics.